Austria

Austria has successfully defended its reputation as one of the leading hubs of international arbitration in Europe over the past few years. Its strong reputation is based on a reliable legal framework dating back to the codification of the Austrian Code of Civil Procedure (ACCP) in the late nineteenth century. To satisfy the requirements of a modern approach to arbitration, the needs and demands of legal practice, and to be one step ahead of its competitors, Austria has amended its arbitration law twice over the past 10 years. Prior to these major reforms, only a few minor changes were introduced. Together with its arbitration-friendly jurisprudence, this modern legal framework has contributed to the high popularity of Austria as place of arbitration.

The strength and steady expansion of Austria's reputation are supported by its leading arbitration practitioners having an excellent reputation as both party representatives and arbitrators, but also on an academic level. The legal education in the field of arbitration and the training of thousands of students having an interest in international arbitration becomes obvious every year when the Vis Arbitral Moot takes place in Vienna. The University of Vienna in particular has gained recognition as a leading academic centre in the field of international and commercial arbitration. Moreover, the Danube University recently introduced a special LLM programme in international dispute resolution, with a focus on international arbitration. These efforts at the academic level will help to foster the strength and expand the international recognition of Austrian arbitration practitioners.

Aside from the legal framework and its background, the prominence of Austria as an arbitral seat is founded on its geographical location and stable political conditions, and Vienna and the other major cities in particular are easily accessible and provide a perfect infrastructure for accommodating the needs of users of international arbitration. Vienna, as the home of various international organisations, has maintained a significant position as a top venue for international arbitration for decades, which is attributable to the Vienna International Arbitral Centre, one of the world-leading arbitral institutions fostering the use of arbitration. Therefore, Vienna is one of the preferred places for arbitration, particularly for parties from central, eastern and south-eastern Europe.

Austrian arbitration law

The first codification on arbitration law was enacted as part of the ACCP in the nineteenth century. At that time, the legal environment was already arbitration-friendly. The former arbitration law already provided for arbitral awards having the effect of a final and binding court judgment, and furthermore, as an ancillary provision, the Austrian Enforcement Act already provided (and still provides) for an avoidance of exequatur proceedings for domestic awards.1 The law proved to be a well-functioning framework, and - together with the neutral status of Austria - served to attract a large number of East-West disputes, and finally to sustain Austria's reputation as an arbitration-welcoming jurisdiction long after the fall of the Iron Curtain.

In 2006, the 1985 version of the UNCITRAL Model Law (the Model Law) was largely incorporated into the Austrian Arbitration Amendment Act 2006 to meet the recognised international standards of arbitration.2 The new provisions apply to arbitration agreements concluded and arbitral proceedings commenced on or after 1 July 2006. Therefore, provisions of the old law that provide for formal requirements may still be applicable today. Yet, according to section 583(3) ACCP, formal defects of an arbitration agreement are cured if they are not invoked by a party before entering into an argument on the substance of the dispute.

On 1 January 2014, the Austrian Arbitration Act 2013 came into force, providing for new proceedings for the challenge of an arbitral award, claims regarding the declaration of the existence and non-existence of an arbitral award, and for proceedings concerning the constitution of an arbitral tribunal. Since this latest revision, the Austrian Supreme Court is the first and final instance with relation to these proceedings in most cases.3 Austria is therefore one of the few countries where arbitral awards are subject to only a single instance of setting aside proceedings.

The current law is embedded in part 4 of the ACCP and closely follows the structure of the Model Law, with chapters 1 to 10 including provisions on:

the making of awards (including the applicable law) and termination of the proceedings;

proceedings on setting aside an award;

recognition and declaration of enforceability of foreign awards;

applicable procedural rules on state court proceedings relating to arbitration; and

special provisions on consumer and labour law disputes.

Unlike the Model Law, the Austrian Arbitration Act does not distinguish between domestic and international arbitration and applies to all proceedings, irrespective of whether the dispute is of commercial character. Pursuant to section 577(1) ACCP, the Austrian provisions on arbitration apply to all proceedings having their seat in Austria. Furthermore, according to section 577(2) ACCP, a number of provisions are applicable even if the place of arbitration is abroad or has not yet been determined. They mainly govern topics concerning court assistance and intervention in support of arbitration.4 According to section 577(3) ACCP, another group of provisions applies where the place of arbitration has not yet been agreed upon and at least one of the parties has its seat, domicile or ordinary residence in Austria. This set of provisions concerns court assistance on issues relating to the constitution of the arbitral tribunal (and challenges of arbitrators).

Austria is a party to the New York Convention on the Recognition and Enforcement of Arbitral Awards of 1958 (the New York Convention) and the European Convention on International Commercial Arbitration. It is a member state of the ICSID Convention, which entered into force for Austria in 1971, and of the Energy Charter Treaty and its subsequent documents, namely the Trade Amendment and Protocol on Energy Efficiency and related Environmental Aspects. So far, the country has signed 62 bilateral investment agreements, mostly with capital importing states. Typically, they provide for investor-state arbitration under the UNCITRAL Rules, the ICSID or the ICC Rules. However, with the entry into force of the Lisbon Treaty, the competence to negotiate and conclude agreements on investment protection has been shifted to the European Union.

Arbitrability

Austrian arbitration law provides for a very broad scope of the notion of arbitrability. According to section 582(1) ACCP, any claim involving an economic interest - and therefore all pecuniary claims - that fall within the jurisdiction of the courts of law are arbitrable. Claims that do not involve such economic interest can only be subject to arbitration as far as they may be subjected to a settlement agreement between the parties. According to section 582(2) ACCP, claims in family law matters, claims based on contracts subject to the Tenancy Act, even if only partly so, the Non-Profit Housing Act, and all claims relating to condominium property are non-arbitrable. However, section 582(2) ACCP does not contain an exhaustive list, and other statutes provide for further cases of non-arbitrability. For example, disputes arising out of collective labour agreements and matters of social security law are non-arbitrable according to section 9(2) of the Labour and Social Courts Act.

Content and form requirements of the arbitration agreement

Section 581(1) ACCP defines the term ‘arbitration agreement' as an agreement by the parties to submit to arbitration all or certain disputes that have arisen or may arise between them in respect of a defined legal relationship, whether contractual or not. The arbitration agreement may be concluded in the form of a separate agreement or a clause within a contract. In other words, section 581(1) ACCP refers to minimum content requirements of a valid arbitration agreement. According to these minimum requirements, the parties must be defined or at least definable in the context of the contractual relationship, the arbitration agreement must refer to a defined legal relationship and the parties' will to have their dispute resolved by an arbitral tribunal must be expressed in the arbitration agreement.

Section 583 ACCP regulates the relevant form requirements and provides that an arbitration agreement must be contained either in a written document signed by the parties or in an exchange of letters, telefax letters, emails or other communication between the parties that provides proof of the existence of the agreement. In addition, when a contract that fulfils these form requirements refers to a document that contains an arbitration agreement, it shall also constitute an arbitration agreement provided that the reference is such that it makes the arbitration agreement part of the contract (ie, the arbitration agreement referred to does not need to be attached to the signed document). Furthermore, a defect of form of the arbitration agreement is cured in the arbitration proceedings by entering into argument on the merits of the dispute unless an objection is raised no later than together with the first argument on the merits. Once the formal defect has been cured, the respective party is barred from relying on it in the course of the arbitral proceedings, as well as in pertaining proceedings before state courts.

Consumer and labour law disputes

Disputes where at least one party is a consumer are, in principle, arbitrable. However, Austrian arbitration law stipulates in section 617 ACCP numerous preconditions for the validity of respective arbitration agreements.

Such arbitration agreements have to be contained in a separate document, distinct from the main contract. This distinct document must be signed separately by the parties. Thus, incorporation by means of reference would not constitute a valid agreement (eg, in general terms and conditions, or conclusion by any other means of telecommunication such as email). Furthermore, the arbitration agreement with a consumer is only valid if it is concluded after the dispute has already arisen, and the place of arbitration must be expressly stipulated. The arbitral tribunal may only meet for an oral hearing and the taking of evidence at another place if the consumer has consented thereto, or if significant difficulties hinder the taking of evidence at the place of arbitration. In addition, in case the arbitration agreement is concluded between an entrepreneur and a consumer, the consumer must, prior to submitting to arbitration, be provided with a written legal advice notice regarding the differences between arbitration and court proceedings. Moreover, if the arbitration agreement was concluded between an entrepreneur and a consumer, and where, either at the time of concluding the arbitration agreement or at the time the arbitral proceedings are commenced, the consumer did not have his or her domicile, ordinary residence or place of work in the country where the arbitral tribunal has its place of arbitration, the arbitration agreement is only binding if the consumer invokes it. Section 617(6) and (7) ACCP provides for additional grounds for the setting aside of an award in case one party to the arbitration was a consumer. As such, arbitration proceedings involving consumers rarely ever occur in Austria.

The same limitations apply to labour law disputes, with an exception for disputes involving the management board members of stock corporations and managing directors of limited liability companies.

The Austrian Supreme Court held that the notion of a consumer under section 617 ACCP corresponds with the definition under the Consumer Protection Act, and that section 617 ACCP applies to corporate transactions.5 Whether a party may be qualified as a consumer has to be determined from an economic point of view (degree of influence on the management of the corporation).6 Therefore, in the particular constellation where minority shareholders are involved and where Austrian law is applicable, corporate disputes may be considered consumer disputes and the arbitration clause may be invalid if it is incorporated in the articles of association.

Appointment of arbitrators

In deviation from the Model Law, Austrian arbitration law requires an uneven number of arbitrators pursuant to section 586(1) ACCP. Where the parties agreed on an even number of arbitrators, the arbitrators appointed have to appoint another arbitrator to serve as chairperson of the tribunal. In the event the parties have not agreed on the number of arbitrators, Austrian law stipulates that the tribunal shall consist of three arbitrators.

In addition, Austrian law provides for a default appointment procedure in multiparty proceedings, which is not covered by the Model Law. When several parties on one side of the proceedings fail to jointly appoint an arbitrator within the period of four weeks, any party to the arbitral proceedings is allowed to request the state court to appoint an arbitrator for this group of parties. However, this does not lead to the opposing party losing its right to appoint an arbitrator of its own choosing. This provision lacks an equivalent in the Model Law.

Mandatory provisions, party autonomy and the discretionary power of the tribunal

Arbitration proceedings under Austrian arbitration law are characterised by significant party autonomy and, in matters not governed by party agreement, broad discretionary power of the arbitral tribunal regarding the conduct of the proceedings. This party autonomy and the discretion of the arbitral tribunal are naturally limited by mandatory rules. Among such mandatory rules are the parties' right to equal treatment, the right to be heard, objective arbitrability and the rules on challenging an arbitrator, applications for interim measures and setting aside an arbitral award. However, the Austrian law does not contain an exhaustive list of mandatory provisions. Whether a provision is of mandatory nature or not has to be derived from its purpose.

Interim measures

In accordance with the Model Law, the Austrian Arbitration Act does not bar a party from applying for interim measures before a state court even if the dispute is subject to an arbitration agreement. However, the competence to issue interim measures does not lie primarily with the state courts. The arbitral tribunal may render interim or protective measures in accordance with section 593 ACCP.

However, ex parte interim measures can only be granted by Austrian state courts as section 593 ACCP provides that a tribunal may issue interim measures only after hearing the other party.

The arbitral tribunal has the authority to render such interim measures as it deems necessary and even such measures as are unknown to Austrian law. Interim measures issued by an arbitral tribunal are enforceable before Austrian state courts and only subject to scrutiny on grounds similar to the grounds for refusal of enforcement of an arbitral award. Furthermore, Austrian courts enforce interim measures issued by arbitral tribunals having their seat outside Austria or in the event the seat of arbitration has not yet been determined without separate exequatur proceedings. Where the interim measure is of any type unknown to Austrian law, the courts will have to transform it to a type of interim measure known in Austria that most closely reflects the measure as issued by the tribunal.

Challenge of arbitral awards

Section 611 ACCP sets forth the grounds for the setting aside of an award as well as the applicable time limits. Accordingly, an award is to be set aside in the following circumstances:

a valid arbitration agreement does not exist, or the arbitral tribunal has denied its jurisdiction despite the existence of a valid arbitration agreement, or a party was under an incapacity to conclude a valid arbitration agreement under the law governing its personal status;

a party was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was, for other reasons, unable to present its case;

the award deals with a dispute not covered by the arbitration agreement or contains decisions on matters beyond the scope of the arbitration agreement or the plea of the parties for legal protection - if the default concerns only a part of the award that can be separated, only that part of the award shall be set aside;

the composition or constitution of the arbitral tribunal was not in accordance with a provision of this chapter (of the ACCP) or with an admissible agreement of the parties;

the arbitral proceedings were conducted in a manner that conflicts with the fundamental values of the Austrian legal system (public policy) - this provision is much more narrow than the parallel provision contained in the UNCITRAL Model Law and many individual jurisdictions, as violations of the agreed procedure constitute grounds for the setting aside of an award only if such violation is extreme enough in order to constitute a violation of procedural public policy;

certain requirements according to which a court judgment can be appealed by an action for revision (certain criminal actions):

the subject matter of the dispute is not arbitrable under Austrian law; or

the arbitral award conflicts with the fundamental values of the Austrian legal system (public policy).

The grounds for setting aside based on non-arbitrability of the matter in dispute, and relating to the award conflicting with the fundamental values of the Austrian legal system (public policy), have to be considered ex officio. In general, an action for setting aside an award has to be brought within three months after the award has been received by the claimant.7 Importantly, the setting aside of an arbitral award does not affect the validity of the underlying arbitration agreement.8

The most important amendment of the Austrian Arbitration Act 2013 that came into force on 1 January 2014 mainly concerns challenge proceedings - for almost all claims for the setting aside of an arbitral award, the Austrian Supreme Court is now the first and final instance (and also for claims regarding the declaration on the existence or non-existence of an arbitral award and state court assistance concerning the constitution of the arbitral tribunal). Only in disputes involving consumers and in matters of labour law do the former procedural rules of the Austrian Arbitration Act remain in force. Therefore, in these two matters, three instances are in principle available for the proceedings seeking the setting aside of the award.

Recognition and enforcement

Awards rendered by an arbitral tribunal having its seat in Austria are executory titles eo ipso under the Austrian Enforcement Act and do not require a declaration of enforceability of a domestic court. It is sufficient to attach a copy of an award with a confirmation of its final and binding nature and enforceability issued by the chairman, or if he or she is unable to do so, by any other arbitrator, to the enforcement request.

The recognition and enforcement of foreign arbitral awards is governed mainly by the New York Convention. Austrian courts widely recognise the necessity for an internationally uniform application of the New York Convention.

Notably, where an arbitral award covered by the European Convention on International Commercial Arbitration of 1961 has been successfully challenged in the country of origin, due to a violation of public policy, this does not by itself constitute a ground for refusal of enforcement in Austria, provided that the award is not incompatible with the Austrian legal order.

Recent decisions and cases

Challenge of arbitrators and arbitrators' obligations

The Austrian Supreme Court has had the opportunity to provide for more clarity as to the scope and nature of an arbitrator's obligations towards the parties on several occasions. The Supreme Court's case law on this issue is expected to further increase as, with the Austrian Arbitration Act 2013, the Supreme Court has been granted direct competence on all party challenges of appointments of arbitrators.

In a number of similarly structured cases,9 the Supreme Court held that an arbitrator's failure to disclose circumstances that may be relevant for his or her independence and impartiality, by itself gives grounds for an objection only where the breach of the disclosure obligation itself may give rise to serious doubts as to the arbitrator's impartiality and independence. Whether this is the case has to be determined on a case-by-case basis. A first decisive aspect is the severity of the arbitrator's subjective fault. A challenge may be justified in case of deliberate and culpable violation of the duty to disclose. Further, it has to be taken into account whether the particular circumstances not disclosed are suitable to raise concerns as to the impartiality. If such circumstances are not of a nature that justifies the challenge of an arbitrator, the arbitrator's failure to disclose them cannot justify the challenge either. Through these decisions, the Supreme Court has set guidelines to a question that has been subject to considerable debate in Austrian legal literature.

The Austrian Supreme Court further held that the time period of four weeks for challenging an arbitrator is only triggered once the applicant has been notified of the composition of the entire tribunal, even where the party is already aware of the nomination of the particular arbitrator and of the existence of the grounds to challenge his or her appointment.10

In another case,11 the Austrian Supreme Court ruled in favour of a successfully challenged arbitrator facing claims for damages from one of the parties involved in the arbitration. In the Court's opinion, while the successful challenge of an arbitrator during ongoing arbitral proceedings may lead to a reduction of his or her fees (where the arbitrator's contract with parties provides for a fixed fee for the entire proceedings), it does not make the services the arbitrator has already performed worthless. Thus, a successful challenge does not lead to the arbitrator losing his or her entitlement to remuneration in total. Nor is a party's claim for damages consisting of frustrated expenses for attorneys' fees and ancillary services justified. Such a claim can only be raised successfully where the arbitrator has acted in gross negligence or with intent.

In different proceedings12 concerning the challenge of an arbitrator, the Austrian Supreme Court adopted the German legal doctrine on the interpretation of article 13 of the Model Law. In Germany - similarly to the Austrian approach - the wording of the provision has been incorporated almost without any changes. Siding with the majority opinion in the German debate, the Supreme Court held that, while after the expiry of the time period for filing an application the applicant may still submit additional facts in support of the grounds for challenge that have been raised within the time period, applicants are not entitled to add any additional grounds for challenge once the time limit for challenging an arbitrator has expired.

The specifics of this particular case also give some indication as to specific grounds for challenge of an arbitrator. In the case at hand, the respondent challenged the entire arbitral tribunal on the ground that it had participated in an ex parte communication with the claimant, which had not been copied to the respondent. The Austrian Supreme Court found that the ‘ex parte communication' did not constitute grounds for a challenge as it was conducted only with reference to the respondent's initial challenge of one of the arbitrators, obtaining the claimant's comments thereon. The exclusion of the respondent from this communication did not give rise to a challenge of the tribunal as the respondent had already been heard on the same issue, namely by having submitted its initial motion to challenge the arbitrator.

Right to be heard

In a recent decision, the Austrian Supreme Court once more confirmed its strict stance regarding the alleged violation of a party's right to be heard.13 The court had to assess whether the arbitrator, by failing to discuss his legal view with the parties, had violated the claimant's right to be heard pursuant to section 611(2) ACCP and reiterated that the right to be heard is only violated under Austrian law if one party to the proceedings has not been granted the right to be heard at all.

Corporate disputes

The Austrian Supreme Court recently ruled in favour of the objective arbitrability of corporate disputes in a cooperative association.14 The Court ruled on a case involving a challenge of a shareholders' resolution under the Austrian Law on Cooperative Associations. It confirmed that the effect of the arbitral award extends to all shareholders, irrespective of whether they actually participated in the proceedings, provided they have been notified of the proceedings and have been given a chance to join them.

Review of arbitral awards

Under Austrian arbitration law, an arbitral award may be challenged if it violates public policy. However, recently, the Supreme Court reiterated that this does not extend to the reasoning of the arbitral award.15 Only the effect of the award could amount to a violation of public policy and therefore only this aspect of the award should be examined by the Supreme Court. The underlying principle of this conclusion is the inadmissibility of a révision au fond (ie, review of the whole award).

Investment arbitration

So far, there has only been one investment treaty claim brought against the Republic of Austria. The holding company BV Belegging-Maatschappij (Far East) brought an ICSID claim over €200 million under the 2002 Austria-Malta BIT. Far East, which owns 99 per cent of Vienna-based private bank Meinl Bank, seeks redress for damages allegedly caused through investigations and state court proceedings targeting the bank itself, as well as some of its executives. Julius Meinl V, the chairman of the supervisory board of the bank, was subjected to criminal investigations in 2007. He had been accused of having caused considerable harm to investors by employing a stock buy-back scheme for manipulating the prices of a real estate investment fund. Far East accuses Austrian state authorities of having appointed biased experts, conducting illegal house searches and improper surveillance, and thus having breached Meinl Bank's due process rights. Far East alleges that the Republic of Austria has impaired its investment by arbitrary and discriminatory means and failed to provide full protection to its investment, committed direct as well as indirect expropriation by progressively dismantling the bank's operations, and furthermore has failed to attempt a settlement in good faith.16

Conclusion

Austria is a very arbitration-friendly jurisdiction with a highly efficient law on civil procedure, modern arbitration provisions, sophisticated case law and an arbitration centre with excellent reputation that introduced new up-to-date rules in 2013. State courts have traditionally always been very reluctant to intervene in arbitral proceedings, and now, due to the latest amendments providing for the sole and direct competence of the Supreme Court, arbitration-related matters lie almost exclusively in the hands of some of the jurisdiction's best judges. The expertise and experience of Austrian arbitration practitioners range from commercial arbitration through investment protection to the particularities of dispute resolution in practically any specific sector of the economy. Certainly, not only the arbitration experts, but also the recent amendments of the Austrian Arbitration Aaw and the introduction of the revised version of the Vienna Rules will attract more parties to choose Austria as their arbitral seat.

Notes

One minor reform was that of 1983 updating the form requirements for arbitration proceedings and incorporation of one provision concerning the challenge of an award on the grounds of the violation of public policy.

For the exception cf. V.

Section 577(2) ACCP enumerates the following provisions: section 578 (court intervention only in matters governed by the chapter on arbitration); section 580 (receipt of written communication); section 583 (form of arbitration agreement); 584 (arbitration agreement and action before court); section 585 (arbitration agreement and interim measure by court); section 593(3) to (6) (power of state courts to enforce interim or protective measures rendered by an arbitral tribunal); section 602 (judicial assistance in the taking of evidence); section 612 (declaration of existence or non-existence of an arbitral award) and section 614 (recognition and declaration of enforceability of foreign arbitral awards).

Austrian Supreme Court, 16 December 2013, 6 Ob 43/13m.

However, the mere fact that a shareholder sits in the board of directors does not automatically mean that his or her influence is significant: see Austrian Supreme Court, 25 August 2014, 8 Ob 72/14t.

Special time limits exist with regard to the grounds for the setting aside of an award based on criminal actions.

Where an arbitral award on the same subject matter has been finally set aside twice and if a further arbitral award regarding that subject matter is to be set aside, the court shall, upon request of a party, concurrently declare the arbitration agreement to be invalid with respect to that subject matter.

Austrian Supreme Court, 18 February 2015, OGH 2 Ob 22/14w. The particular case involved a long-term contract on supply of natural gas between a Russian supplier and a Czech importer and distributor. The contract provided for a minimum purchasing obligation on the part of the importer and also for a clause allowing for quantity reduction. A dispute arose on whether the quantity reduction clause was void due to a possible breach of EU antitrust law. The importer refused the supplier's claims for payment and the latter commenced and subsequently lost an arbitration (based on the minimum purchasing obligation and arguing that the quantity reduction clause is in breach of EU antitrust law) before an ICC tribunal seated in Vienna. The tribunal did not find a breach of EU antitrust law and upheld the disputed quantity reduction clause. In the challenge proceedings, the Court of Appeal, being the court of second instance (the procedural rules prior to the Arbitration Amendment Act 2013 were applicable), did not even consider the question whether or not the clause was void. It found that both provisions - the one on minimum purchase obligation and the one on quantity reduction - are so closely dependent on one another that the nullity of the one leads to the nullity of the other. If the quantity reduction clause had been void, this would automatically render the minimum purchase obligation void and thus would deprive Claimant from its basis of the claim raised in the arbitration proceedings. The Supreme Court found this reasoning to be in line with previous jurisprudence. Therefore, the questions raised by Claimant concerning the violation of EU antitrust law by the arbitral award and concerning the standard of review was found not to have prejudicial significance. Thus, the Supreme Court rejected the admissibility of the legal remedy invoked.

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